from the because-they're-not-being-intellectually-honest dept

We've obviously been highly critical of Intellectual Ventures over the years, as the company is doing tremendous harm to the innovation world by effectively setting up tollbooths and legal threats that take money away from actual innovation and funnel it into inefficient uses. Recently, we wrote about how another firm, IP Checkups, was planning to unveil Intellectual Ventures' infamous web of shell companies, which it uses to shuffle patents around, to hide who the real beneficial holders of the patents are. In response to this, the Spicy IP blog did interesting interviews with both IP Checkups and with Intellectual Ventures. Intellectual Ventures was represented by Nicholas Gibson, International Marketing Director at the firm. You can read the two interviews, but I just wanted to focus on one of the more ridiculous, and blatantly intellectually dishonest statements of Gibson's. IV management is somewhat infamous for these kinds of things, but they really ought to be called out on their bullshit more frequently. Spicy IP points out that IV claims to hold 40,000 patents and growing... and wonders how any technology company could figure out if they're infringing and how they should go about getting a license. Gibson responds by pretending this is easy.

Any company selling a technology and wanting to try and check if the product is infringing someone else's patents, need only go to the USPTO (or corresponding websites for the Japan Patent Office, Chinese Patent Office, etc.) and look up patents and publicly available patent applications that fall in the same technology category and class. When they are doing their search for prior art and pre-existing patents in particular fields, they should be looking for the technology represented in the patents, not for who owns the particular technology. If IV happens to own one of the patents they discover, by all means please come and talk to us about taking out a license.

Simple, right? Ignoring, first of all, just how many international patent offices one would really need to go to, the idea that it's somehow easy to look up what patents you might infringe is a complete joke. And anyone who's serious about the patent system admits that. First of all, it assumes (totally incorrectly) that by reading through a patent application you can just tell if what you do is infringing. That's a riot. Most patents are written for lawyers to understand, not actual developers or designers. Second, they're written so broadly and so opaquely, so that they can only be deemed infringing after a product has come to market successfully. It's nearly impossible to track down the patents you might infringe on.

A few months ago, we highlighted a careful study by Tim Lee and Christina Mulligan (at Yale) about why it's mathematically impossible to actually look through all relevant patents when it comes to software. While Gibson and Intellectual Ventures are pretending -- against all evidence -- that patent boundaries and classifications are clear, well-defined and easy to figure out, the reality is quite the opposite. As the Lee/Mulligan paper noted, if software companies actually wanted to do a real prior art search through the patent database, we'd need a lot more patent lawyers:

we estimate it would take at least 2,000,000 patent attorneys, working full time, to consider whether all these software-producing firms have infringed any of the software patents issued in a typical year. Even if firms wanted to hire that many attorneys, they couldn't; there are only 40,000 registered patent attorneys and agents in the United States.

The thing is, nearly everyone in the space, on any side, seems to recognize that the broad and fuzzy boundaries of patents is a real issue to be dealt with. That Intellectual Ventures feels it's okay to pretend that the system works just fine, when all of the evidence shows that's not even close to true, suggests just what kind of company it is.

Re: It's easy to tell if you're infringing.

Of course, still assuming the patents are all valid

The one thing that is completely ignored here is that there's always a possibility that the patents are invalid to begin with.

Searching the patent databases for existing patents doesn't magically mean you're infringing on them if they're invalid in the first place. That's the continually-ignored elephant in the room whenever these guys start talking.

really, if technological innovators were really interested in not being idea-theiving bastards they could just pay people to breed more patent lawyers. But no, they are too interested in their own pocketbooks to pay 2 million lawyers per company per product. Cheapasses deserve every lawsuit against them.

Re: It isn't hard

You are right is just next to impossible to determine who is the owner of said patent or owners since there is an increase in the numbers of multiple patents for the same thing and nobody shows up until you try to produce something.

Also IV is in a lucky place they never will have to deal with searching the patent office to produce anything since they produce or create anything.

Isn't this system wonderful, you actually don't have to do work to extract rent from anyone, you don't even need to build the house you just need to have a floor plan and ask for rent from anybody who actually build the house LoL

Re: Re: Re: Of course, still assuming the patents are all valid

No, what it does, is removes money from potential job-creators, and gives it to already existing legal teams and patent trolls, who then use that money to buy more patent folios, and the cycle repeats.

Re: Re: Of course, still assuming the patents are all valid

Of course they do. They get an economic bonus for each patent they get through!
Face it: Invalid patents are shifting a responsibility that originated at the patent office to the courts and in the process it is severely increasing the time it takes for producers of content to find out if their use is infringing or not since they have to consider invalidity too when looking through the stack. It is bureaucracy for bureaucracys sake.

The copyright cartels should have patented this idea...

then they could be suing IV and others for making the statement.

The copyright cartels have been screaming for a long time that Google and others can easily figure out if something violates copyright, but when push comes to shove this easy process is decried as impossible if it involved the cartels having to put any money into the process.

It might be time to consider a simple idea -
If you have a granted monopoly of any sort, its your job to police it.
Rather than lie in wait until someone makes a finished product they somehow resembles your overbroad joke of a patent to strike, make them be more active.

You were given a monopoly on an idea, not the right to require everyone else to protect it for you.

how to tell if something is infringing

How about

How about we give all patent holders 2 years to produce a product that involves the patent? If they don't/can't, it becomes invalid and public domain. Of course software and business method patents should be immediately killed.

While in Rome

I'm sorry complaining about the patent system is a waste of time. That's the system we have to work in. It's like complaining that Apple charges too high of a percentage of revenue in their app store or google's advertsing is too expensive. It's probably true but what are you going to do about it?

Re: Beech's comment

You are either being really sarcastic, or really stupid. You do realize how expensive everything would cost if companies did what you are suggesting? Increase the amount of lawyers to 2 million PER COMPANY!!?? It's not the companies who are the broke cheapasses; it's you, me, and the rest of the consumers out there who would have to fork up the money to buy these company's products after paying the lawyer's fees.

They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.